Making workers’ rights a civil right

A half-century ago, labor leaders sought common cause with civil rights groups in passing legislation to outlaw employment discrimination based on factors such as race, sex, religion and national origin. Most famously in that effort, the trade union and civil rights movements came together in the 1963 March on Washington for Jobs and Freedom, whose speakers featured Dr. Martin Luther King Jr. and a young man named John Lewis.

Now, leading civil rights figures in Congress are taking steps to outlaw a relatively new form of discrimination: against workers of all races who try to form a union.

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Yesterday, Reps. Keith Ellison (D-Minn.) and the very same John Lewis (D-Ga.) introduced a bill that will give employees who are fired for union organizing the right to sue in federal court — providing them the same legal protections as enjoyed by minorities who suffer discrimination based on race.

Today, it is technically illegal under the National Labor Relations Act to fire individuals for trying to organize a union, but employers routinely break the law because the penalties are extremely weak. Even if employees win a judgment from the National Labor Relations Board, they just receive back pay and reinstatement in their jobs. Freedom House notes that U.S. laws are particularly ineffective in protecting the right to organize compared to other advanced democracies. By contrast, our civil rights protections are relatively strong and include compensatory and punitive damages, as well as the right to engage in legal discovery and to win attorneys’ fees, when one prevails in federal court.

Discriminating against those trying to organize can be an extremely effective employer tactic, as the union ringleaders are jettisoned from the workplace and most other employees get the message and become paralyzed with fear.

“Most people want a union, but they need a job,” Ellison said.

Harvard labor economist Richard Freeman completed a large study in 2007 that found if workers were provided the union representation they desired, the overall unionization rate would have been 58 percent, whereas the actual rate was 12 percent. Another study that same year found almost 1 in 5 union activists could expect to be fired as a result of their organizing activity. Many have linked employers’ ability to discriminate against union activity to the significant gap between employee desire for unionization and declining rates of union density. This type of discrimination has increased significantly in the decades since passage of the Civil Rights Act, even as outright discrimination based on race and national origin has declined.

Discrimination based on organizing hurts all workers but minority workers in particular, as they are more likely than whites to support joining a union and receive a larger wage premium from collective bargaining. Lewis, probably the nation’s most revered civil rights figure alive today, and Ellison, a rising star of the progressive movement, argue that, in order to finish the job set out by civil rights advocates — bringing economic equality to disadvantaged minorities — the right to engage in collective bargaining must be protected.

More broadly, labor unions fight for workers of all races to receive a fair share of productivity gains. Not surprisingly, researchers have found that as the strength of organized labor has declined, so has the proportion of income going to the middle class. International competition has also eroded labor’s strength, but our weak laws play an independent role, as other countries, subject to the same globalization pressures, have not seen a comparable decline in unions or a comparable rise in income inequality. People think of inequality as inevitable, “like the weather,” Ellison suggests, but the German example shows that a society, with strong unions, can be both highly competitive and equitable.

A half-century ago, the AFL-CIO was a political powerhouse that aided in the cause of civil rights. Former Missouri Democratic Rep. Richard Bolling argued, “We would never have passed the Civil Rights Act without labor. They had the muscle; the other civil rights groups did not.”

Today, with labor on the defensive, representing fewer than 7 percent of private-sector workers, civil rights advocates in Congress are lending their moral authority to suggest that civil rights tools be employed to help strengthen the bargaining position of workers.

In doing so, leaders are picking up the mantle of Dr. King, who saw the strong connections between the union and civil rights movements. “The two most dynamic and cohesive liberal forces in the country are the labor movement and the Negro freedom movement,” he suggested in 1961. “Together we can be architects of democracy.”

To be sure, we live in a very different time, and the Ellison-Lewis bill is unlikely to make much forward progress in Speaker John Boehner’s (R-Ohio) Congress. But the introduction of federal legislation highlighting the way in which workers’ rights are civil rights can begin an important discussion and maybe even galvanize a new movement. If Washington is gridlocked on how to address economic inequality, perhaps the states and localities will take the lead in passing civil rights protections for union organizing, creating momentum that might one day reverberate back to Congress.

Economic inequality remains the great unfinished business of the civil rights movement. A country in which individuals are free to organize to bargain collectively — without fear of being fired in the process — would help fill a gaping hole in America’s civil rights edifice.

Kahlenberg and Marvit, fellows at the Century Foundation, are co-authors of Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice.